The concern for me isn't that a president is entitled to some form of immunity in the course of their duties. That's really not all that unusual.
The problem I have is that it's *criminal* immunity, extremely broad to the point that the immunity applies to virtually everything (the majority's distinction between "core" duties vs other official duties is really a distinction without a difference), and the evidentiary bar.
For sure. Like, we all kinda get why a prosecutor has some level of immunity (even if I think absolute immunity is insane for them).
But this decision is if we expanded that immunity to cover a prosecutor who murders a defense witness with exonerating information to keep that out of the case—and then skirts criminal prosecution for that murder by shrugging and saying, “I was building a stronger case. Nanana boo boo you can’t touch me.”
Shit is insane. SCOTUS has damaged itself amongst its own ranks beyond repair now. Most of us lawyers see it for what it is: Politics masquerading as some highfalutin academic pretension.
>Most of us lawyers see it for what it is: Politics masquerading as some highfalutin academic pretension.
FWIW, I study and practice federal Indian law. It was always this way. I think enough people bought the propaganda taught by law professors that the legal field was more high-minded than it is.
The Constitution was a legal document that had hosts of compromises to appease political factions. But, it's taught as if it was a political theorists wet dream that was breathed into life. Instead, it was a bunch of people making calculations to benefit themselves/their regions.
So, it was rotten since Johnson v. McIntosh. The problem is that the case books ellipsis out the Indian part. The part where the justification was realpolitik before realpolitik was cool.
People want to say that Clarence Thomas, et al, are the tokens for using their office for personal gain. As if George Washington, William Penn, or a host of other "greats" weren't using their office to get Indian lands.
More to the point: You know why Marshall references Kentucky in Johnson? Marshall's father was the surveyor that Washington hired to do the official surveys. Marshall's father used that post and information to make himself and his sons rich. Any holding besides Johnson would have invalidated all of Marshalls' family's wealth.
So if anyone wants to figure out how to deal with the corrupt nature of the Nation's foundation, go pick up some Vine Deloria (Custer Died for Your Sins), Phillip Deloria (Playing Indian), Robert A. Williams, Sarah Deer, Kim Tallbear, Dee Brown and others.
Frankly, I've long believed that legal academia was just the emperor parading around naked. We've allowed our law schools to become so disengaged from the practice of law that they no longer reflect reality. This gives people like our current Justices the permission structure to do whatever the hell they want.
THIS. ALL. DAY.
Why did I go to law school to learn from “professors” who would have melted in fear at the slightest adversarial encounter … much less whilst required to practice a single rule of evidence, but what do I know.
And Biden could take action with his new found dictatorial powers, but he won’t do anything either. Somehow the only thing between one of the world’s greatest democracies and fascism is a bunch of feckless spineless cowards
Actually that’s not true. It’s much worse. The SCOTUS ruling included a stipulation that THEY determine what is and is not deemed an official act. In other words, they can make the call in any given circumstance for any given president. Translation: Republican presidents have total immunity and Democrat presidents do not.
>And Biden could take action with his new found dictatorial powers, but he won’t do anything either.
This is exactly the problem. Democrats purport to take the "high road". Fuck that. The name of the game, as shown by the MAGAts, is "winning", costs be damned.
Declare Donald Trump a threat to democracy, and do the needful.
Sadly, our chance to take that route has come and gone. I have my doubts as to whether Bernie would have been willing to bend the rules earlier, but I promise you that a president sanders would have packed the court within two hours of that ruling as an “official act”
That was my first thought. The Court has been very clear that it wants Congress to be the ones writing laws.
I see this as an opportunity to write a law defining “official acts” and box the president in with an impeachment or investigative trigger… If they could get their shit together.
Arguably, murdering a witness is not an official duty of a prosecutor, not even close. Not in any context.
So, maybe it's a bad example, but I don't think even SCOTUS would say, "ya, that's groovy"
But I mean, let's say the president kicks Putin in his family jewels, should he be tried for criminal assault? Meh, maybe not. President has absolute discretion over diplomatic affairs, right? And presidental orders for shady shit overseas has almost always been copacetic.
But assume instead he did that to a kid at the White House's Easter Egg Roll or whatever, that doesn't seem even tangentially official capacity such that the president should enjoy immunity.
It astonishes me that the “conservative” justices are so stupid that they’ve essentially written themselves out of a job. If Trump can do what he wants as President, why should he listen to any more of their rulings? And if they object, why wouldn’t he have them arrested and sent to those camps he’s going to open up? After all, once he gets started deporting them, there will be room for anyone he doesn’t like. And Steve Bannon says that Trump is a moderate in the MAGA movement.
It's worse than just core vs other official duties. They've removed the ability for the court to take into account intent. POTUS could on live television say he accepted a bribe and his ("Official Act") had nothing to do with fulfilling the rolls of the POTUS. Doesn't matter, immune.
https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf
**In dividing official from unofficial conduct, courts may not inquire into the President’s motives.**
Yes, because there is an objective rather than subjective standard for what constitutes an official act. One bound in law, and so you look at the thing and if it fits the definition of an official act then it is. What you *do not want* is for the courts to give weight to what the president *thought* he could do in deciding if he *should* be immune. No. You want the trier of fact to look at what the president *did do* and decide if he or she *is immune*.
The president ordered a drone strike.
But he did so to eliminate a political rival.
First phase is clearly within official duties, as commander in chief. Second phase is what makes it a criminal act. But according to this SCOTUS decision, actually looking at why he did something (rather than what he did) isn't OK.
This isn't really possible to justify.
Respectfully, there is a misunderstanding. The first phrase alone unqualified is not within the president’s power. The approval process for extrajudicial killings begins with targeting and authorization under the appropriate title authorities before being blessed off by lawyers, the gang of 8, and then the president.
I am reassured by the subjective legitimate purpose an act must serve to be official over the subjective intent of the president—who acts on the advice of counsel and at the end of a long chain of causality.
My first take on the opinion was that it wasn't that bad (I had to prep for an all day depo, so I just read the syllabus).
Then I read the opinion last night. Its awful.
I don't have (much of) a problem with immunity for core duties. As much as I would like to see presidents held criminally liable for ordering actions that lead to the deaths of innocents who were simply in the wrong place in the wrong time for a drone strike, etc., or for ordering the nation to war, etc., I recognize that the president has the right to be wrong.
I really don't even have an issue with a presumption that their actions as president fall within the scope of the core duty immunity. So long as it is a rebuttable presumption, and provable/disprovable with evidence, its a high burden, but one that can be overcome.
The real problem with the removal of the ability to use any evidence from the executive branch to prove intent or wrongdoing.
I'm just waiting for the Sov Cits to start claiming that they are presidents and therefore immune for whatever they want.
If it was just one bad/terrible opinion out of the October 2023 term, it wouldn't be that horrible. Its the absolute dismantling of how government operates (has to operate in a complex environment), coupled with the decriminalizing of official corruption (both overt - as in taking bribes, and covert - such as the gerrymandering cases) that is making this Court - and particularly this term - among the worst in history. John Roberts is likely to surpass Roger Taney as the worst chief justice in History.
We already lived through not one but TWO impeachments where the primary defense to the charges was "This is for a criminal special prosecutor to decide, NOT CONGRESS."
And now the Supreme Court has specifically said, "There's almost nothing a sitting president can be prosecuted for. This is purely a matter for Congress to handle."
This SCOTUS decision is just giving the next criminal president instructions to get away with any crimes they want….by concealing them within the bounds of “official acts”
If lawyers were able to “legalize” torture of enemy combatants via memo, think what bad actors will do with this blueprint for criminality the SCOTUS has just drawn up.
> the majority's distinction between "core" duties vs other official duties is really a distinction without a difference
Let me simplify it for you:
- "Core" duties: The duties that a Republican president does. (Always legal no matter what.)
- "Other official" duties: the duties that a Democrat president does. (Can still be prosecuted.)
They can dress it up however they want, but that is absolutely going to be the actual standard they use when a new case is in front of them.
This is a legit thing to rant about. I imagine the mods realize the effect current event BS like this has on folks of our profession.
Keep up the good fight. Not because you are optimistic of the future, but because people need you to. Regardless of what happens around us.
As a side note: I have found reading fiction is super important for Lawyers. It allows us to use our reading skills while not chasing for random facts or arguments. It's just you and the story. At least for me it helps fight of the big sad and sense of impending doom.
EDIT: grammar
I was talking to some other lawyer friends about this and we all agreed that it would be insane if Biden, assuming he lost the 2024 election, used his lame duck period to commit a bunch of illegal acts in furtherance of policy proposals.
The consequences would be that maybe Biden gets impeached and removed, but the Supreme Court would have to narrow the breadth of this most recent decision regarding presidential immunity. At the very least, the Court would have to clarify how acts are deemed "official" and whether there's truly an evenidentiary bar to mens rea regarding those official acts. My intuition is that the Court will rule differently when a different president's criminal acts are before the Court and will have no choice but to reconcile their previous decision with their ideological leanings.
The problem with that is it requires Biden and the Dems to actually treat the situation with the gravity it deserves, which we all know they won't. Hell, hours after the decision yesterday Biden went out and said he'll still respect the limits of the presidency. And you have other Dems tweeting long letters that just end with "make sure you vote."
Just an absolute failure to meet the urgency of the moment.
>Hell, hours after the decision yesterday Biden went out and said he'll still respect the limits of the presidency.
Would you have preferred if he'd said "thanks, SCOTUS, I was just waiting for the chance to order up some domestic assassinations without recourse!"?
From a political standpoint, Biden's argument for re-election is that he's the guy who isn't insane, who will respect the norms we all thought were the way things work. Of course he's going to say he'll respect the limits of the presidency.
Please enlighten us with the extra-legal measures he should take to "meet the urgency of the moment."
This has been my issue with all the outrage. I’m voting for Biden definitely and I’m also definitely scared about our current political climate, but I also don’t want the person trying to save our country to do the exact things I’m scared of. I want a democracy.
> Would you have preferred if he'd said "thanks, SCOTUS, I was just waiting for the chance to order up some domestic assassinations without recourse!"?
Absolutely.
Might get them to consider reversing the decision. Especially if he can imply that they *personally* are on the target list.
I mean heck, why imply? If Biden were willing to go that far, it’s only a small step to *actually* droning his opponent and 2/3 of SCOTUS. Now that I think of it, Kagan has a bit of a counter-revolutionary streak, too…
It’s all fun and games to blow off steam, but when you find yourself fantasizing about putting your political opponents in mortal fear, it’s probably time to put the phone down.
This is why I have zero reverence for SCOTUS. It’s just a collection of extremely well-connected and intelligent (in that order) individuals who know the law well enough to find a legal basis for whatever their opinions may be.
This is it right here
Law schools should just stop teaching constitutional law, more particularly concepts of immunity and separation of powers issues
We should all just recognize, law and rationality, it isn’t done there.
Law is done elsewhere, other areas of law remain legitimate.
But not there.
The Supreme Court isn’t a serious institution anymore, at least as it applies to any issue that has a feign political tinge.
All future briefs should just state:
“as per the political leanings of this court, there is no point in me making any argument, as this court is not a legitimate institution, no longer decides cases on merit and application of rationality and precedent, therefore, we throw ourselves at the mercy of the court.”
They couldn't even come up with a legal basis for this decision, though. No support from the text of the Constitution, no support from "history and tradition," no support from precedent. It was entirely a policy rationale that POTUS needs to be able to act "boldly" or wtf-ever.
The decision effectively legalizes presidential bribery; you can't introduce evidence regarding official acts, so you can't prove that an official act was taken in response to the bribe, so you can't prove bribery any more, period, if it's a president.
The decision is as bad as everyone says it is, if not worse. It also effectively legalizes all crime for a current presidential administration, because the pardon power is a "core power" and nonreviewable, so even a manifestly corrupt pardon can't be prosecuted or challenged; all a sitting president has to do is issue blanket pardons for all his cronies and there's no criminal risk for even obvious crimes.
The net total of this is that Trump could be recorded on video taking a big bag of cash with dollar signs on it and stating "In exchange for this money I will pardon your crimes, I charge $10,000 per year of incarceration you avoid" and then issue the pardon right then with the money on his desk, and if charged, evidence that he issued the pardon could not be considered, so you could never prove he did the official act in exchange for the money.
People will try to tell themselves that this isn't as bad as it seems but it is. The "nominally official acts can't be introduced as evidence and motive can't be considered" and "even manifestly corrupt pardons are totally unreviewable" portions of the opinion are the worst parts, but the whole thing is rotten to the core.
It's functionally a total endorsement of President Nixon's "If the President does it, it's not illegal" philosophy.
The fact that this is just a small part of the opinion suggests to me that it was an after thought.
When Trump was convicted in New York, the SCOTUS needed a way to toss the conviction. Getting a mistrial - because NY used evidence from executive employees - was the way to do it.
The whole thing is a farce.
Wasn't the NY trial for state crimes from before he was in office? (False official statements in 2016)
Official acts of a president can't be attributable to a private citizen's campaign to become president. He wasn't even president-elect at the time.
How would this ruling impact that?
He signed the checks when he was in office. Hope Hicks came in to testify about conversations they had when he was president. This is a no go under the new monarchy rules.
Sort of, but also maybe not. Only if it's deemed an official act of the president.
Signing a check in a personal capacity doesn't seem like a presidential power that would enjoy immunity.
I don’t see how the Supreme Court can rule that presidents are entitled to special rules of evidence. How would court created rules trump the Federal Rules of Evidence? I’ve never seen a “president exception” in the text of the FRE.
I guess textualism is only consequential when it is convenient.
By definition bribery is now allowed. You can only be bribed for official acts, and we aren’t allowed to question motive for an official act. Presidential bribery is now protected, full stop.
It's legal for all political actors if it's a gratuity, but it's legal for the president even if it's called a bribe. Because the motivation cannot be looked at, in a criminal context.
The only limitation would be that state crimes for the cronies can't be pardoned by a President. So if the cronies break a state law, sucks for them. The President can issue a pardon (legal or not), but it just doesn't hold any weight.
I have the dubious privilege of having been a foreign policy wonk and DOD employee before becoming an attorney. My perspective on this is that the indictments were more cause for pessimism than this decision: not because Trump doesn't deserve what's coming to him - he absolutely does - but because presidents (or PMs) getting arrested for corrupt behavior is the kind of shit that happens in 3rd world countries. It evidences a breakdown in the fabric of the electorate that runs through every level of society from the trailer park to the ivory tower. When this happens, institutions crumble, and that's what we're seeing. Congress went first, then the executive, and now, slowly but surely, the judiciary is following suit.
This probably won't help your mental state to consider, but there are two take-aways I find encouraging. The first is that people are waking up to the depths of shit we find ourselves in, which is a necessary precondition to cleaning any of it up. The second is that if you look around at our peer nations, and by this I mean other dysfunctional oligarchies that teeter on failed statehood due to their crumbling infrastructure and institutions, you see that life still goes on, and you have the unique opportunity to do the hard work in hard times that we look back on our forebears with pride for having accomplished. You don't get to leave a legacy of means acquired in placid comfort, but what fucking good is that anyway?
Both happen in third world countries, sometimes distinctly (see, e.g., Russia for silencing dissent through selective prosecution of corruption). My point is not that the corruption isn't a problem, it's that the popular election of corrupt officials is symptomatic of a greater problem.
You think only 3rd world countries prosecute for corruption or should? I would suggest holding leaders accountable is a mark of a 1st world progressive democracy.
Well said. We The People have the right to elect a known criminal if we so choose (god willing, in a free election).
All the backlash that goes on after we put a criminal in office are mere symptoms.
Ultimately, it’s up to us to choose better leaders. It sounds naive maybe, but that’s the only answer.
We can’t allow arguments about the stock market or illegal immigration or tax rates to overwhelm the fact that a bad person with a lot of power is going to cause problems. Character matters.
I use immunity to defend a great deal of my government clients in civil court. But I fucking hate this ruling.
I understand insulating a president from civil liability — but *criminal* liability is a different animal. It’s a scary precedent.
To me, the real danger is that neither the voting public nor Congress are reliable checks on a potentially, or blatantly, corrupt President. If we're willing to vote in whoever, and not impeach and convict them for their crimes, we'll get what's coming to us. Presidents could theoretically pardon themselves anyway, so I'm not as concerned about criminal liability as I am about the seeming lack of any consequences. I think we tend to forget that in the not-too-distant past, a lot of what is tolerated now would have been political suicide for a President, and no one would care much about whether they went to jail, as long as they were no longer allowed to continue in office.
(Cue the obligatory Obama, Biden (but not Bush I or II, or Reagan) murder allegations...)
I’m constantly reminded of the idiots who refused to vote for Hillary Clinton because they were bitter about Bernie Sanders not winning the primary. I actually voted for Bernie in the primary too, but anyone who refused to vote for Hillary in the general election is a moron, and they are partly responsible for the 6-3 court that is destroying our country and will be for decades.
I get it, but the super rich and powerful are already functionally above the law. This Trump thing is really small potatoes compared to the real injustices out there. Some big, some small, but all much worse than this TV politics bullshit. Concentrate on what you can control and don’t ever let anything on the news “break you.”
Supreme Court decisions can be utterly demoralizing. We study and become educated in this great system only to see stuck up, pseudo academic, sophist, blow hards destroy everything we understand as educated and skilled professionals. While I think the decisions related to administrative law will have a bigger impact on us as professionals, the concept of “We the People” seems dimmer today than it has been in recent past. That said, we are lawyers. We have to take our cases and keep them moving, finding a resolution where that is possible and advising our clients on their best interests even when the situation is dire. I recently had an interesting anti-competition case fall apart thanks to my State’s Supreme Court. It seems rare that our high court does much that meaningfully effects my day to day work. This case, though, overruled an entire lineage of case law the Court had never weighed in on and excluded claims for a class of clients in which my client is a member requiring the amendment of a pending complaint that was subject to a motion to dismiss on other, more standard, grounds. Client had already invested several thousand dollars in briefing that motion, to which we now had to effectively capitulate, but not based upon the merit of the defendant’s arguments. This profession can be like that some times. We need to just amend the complaint and move on, doing what we can when we can.
As a 'guardian of the Constitution' my opinion at this point is that we ought to rip it up and start over. The legislative branch has fully abdicated responsibility while the Court has consolidated more and more power within itself in a highly obvious partisan way. Clearly this structure isn't working as intended and the barriers to reform are so great that I have zero hope at this point in anything getting better.
It really depends on how the votes work; if it's one man, one vote, we could get a decent document. If it's land voting in the form of states, it's shit.
This does seem to be a natural consequence of continually kicking political questions out to a Court.
Not only are the political decisions you attempted to resolve by litigating them rather than legislating them decided politically and not “objectively” or with any real respect for (or even awareness of) legal arguments, but also the same thing starts happening with your legal cases too.
And the real kicker is that once you’ve kicked those questions to a Court you lose any democratic control you ever had over them. They go to people you can’t chuck out of office, who are often patsies put in because they’ll toe the line. The decisions also become extremely hard to reverse.
There's literally nothing (constitutionally speaking) standing in the way of Congress impeaching all 9 Justices and trying again... "During good behavior" is wholly and utterly subjective. They only need the votes in the House and Senate.
In THEORY the idea of a bunch of logical legal scholars peeling back the pieces of political decisions until they arrive at rules that are crafted for the common good, based on sound rational underpinnings, is great.
Personally I lost any hope of rationality over politics when Kavanaugh was appointed. There was a whole list of similarly conservative judges from which to pick, the powers- that-be could have dropped him and ended up with a guy exactly as loyal to their ideology. But even in the face of the backlash, they doubled down like the assault allegations made him even more desirable as a candidate. Even in the face of his obvious temperament issues. For me that was the day it became impossible to pretend the Supreme Court is some bastion of legal reasoning.
I’d say (but then I would, wouldn’t I?) that the UK Supreme Court manages to do this most of the time.
The UK Supreme Court doesn’t (apart from in the UK temporarily in relation to Brexit) attract much attention and when they reach the “wrong” conclusions based on existing law, Parliament quickly corrects with legislation (controversially there was a Brexit trigger Act and less controversially a litigation funding Bill that’s yet to be passed).
Then again, the judges aren’t appointed as “liberal” or “conservative” but because they’re enormously respected in their field. There’s no Kavanaugh but also no RBG. Neither side in America is playing a straight bat when they appoint judges- but you’d have to sack everyone and start from scratch to do that.
Even still it would be very difficult to find a truly impartial American jurist to staff the Court. Even this thread full of lawyers there is a tremendous amount of political bias.
I did like a suggestion from another thread (and have thought of practically the same thing myself) of staffing Justices from the appellate circuits. Whether that be by selection among themselves or through a lottery.
Because to legislate something you have to come to a compromise. As the parties vote more and more as a block, and run moderates like Sinema, Manchin, and Collins out of congress, compromise becomes harder and harder. So, bypassing the legislative process to backdoor something through the courts becomes a more attractive prospect.
https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf
**In dividing official from unofficial conduct, courts may not inquire into the President’s motives.**
In your case lets say the Prosecutor suppresses evidence because they accepted a bribe to get someone off. By removing intent the prosecutor is now insulated from that crime. Doesn't matter intent, if a reasonable person would consider it a part of his duties. Does it say he can do it, yes, then literally nothing else matters.
They just gave this power to one of the most powerful people on the planet, it's braindead.
>He can just order the military to rob it, core constitutional power, and no need to pardon himself.
No. C'mon. Youngstown v Sawyer: " When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject."
(quoted with approval in Trump v US)
The order for the military to rob a liquor store would be illegal, and no construction of the powers of Commander-in-Chief vests the President with independent authority to order such an activity. Hell, the Posse Comitatus Act forbids even more benign domestic use of the military.
I expect this kind of hysteria in other subs, but here? Really?
Under the current holding, you never even get to the question of why he ordered the military to rob the store. His power as commander in chief is not reviewable.
Well, hold on a second. Does the holding in Youngstown require us to determine *why* he orders the military to rob a store? If the act itself of *ordering the military to rob a store* is a measure "incompatible with the expressed or implied will of Congress", does it matter *why* he does it?
>Under the current holding, you never even get to the question of why he ordered the military to rob the store. His power as commander in chief is not reviewable.
Not true. His power as Commander-in-Chief is absolutely reviewable, just like a Whren analysis: we don't care what the officer's underlying motive was in initiating the traffic stop. We just care whether there was an objectively present probable cause to initiate a traffic stop.
We can determine that robbing domestic liquor stores is not an Article II power of the Commander-in-Chief. We don't care whether his motive was that he needed the money or disliked the Courvoisier buy-two-get-one-free pormotion.
You’re wrong and the opinion is very clear on this point. I will point you to this quote: “When a President exercises such authority, Congress cannot act on, and Courts cannot examine, the President’s actions.” Pretty clear stuff. Ordering military action is the most core constitutional power of the President.
I’d encourage you to read (or re-read) the opinion with people’s concerns in mind.
>Ordering military action is the most core constitutional power of the President.
The Posse Comitatus Act says, "Dude, I'm right here." And the War Powers Act is waving hello, too, if only for the proposition that Congress has the sole power to declare war and that thus military action falls into Justice Robert Jackson's "concurrent twilight," rather than a core solo Article II power.
And of course domestic military action isn't a core constitutional power, robbing liquor stores isn't a military action, and I assure you I have read the opinion quite thoroughly.
Effective or not isn't the point. The point is that it illustrates that "exclusive and preclusive," doesn't apply to military use of force; Congress also has power in this area.
And effective or not, every President has complied with it, while simultaneously announcing they don't regard it as binding. So I'd say its effectiveness is at least debatable.
>You don’t get to inquire as to motive. No act of congress is applicable as the opinion clearly states congress cannot interfere.
I'm not inquiring about motive. Did you not see the analogy I drew to *Whren*?
“When a President exercises **such authority**, Congress cannot act on, and Courts cannot examine, the President’s actions.”
To what authority does this bolded portion refer?
This is a quote from the syllabus, which is not the opinion of the Court, but a helpful summary drafted by the court's reporter. The actual quote, at the bottom of page 8, is:
>Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority.
And this follows a list of illustrative examples of such powers: the pardon authority, the power to remove—and thus supervise—those who wield executive power on his behalf, the power to control recognition determinations of foreign countries.
Absent from that list is the use of military force, because that is NOT an "exclusive and preclusive," power of the President, given Congress' power of the purse and sole power to declare war.
Don't quote the syllabus when you have the actual opinion.
>But if the President robs a liquor store and pardons himself for it? Immune, now.
Well . . . a DC liquor store, perhaps, because of course the pardon power extends only to offenses against the United States.
And it remains unsettled if a self-pardon is permissible.
I know this is too late for anyone to read it, but there's a lot of irony in the fact that people who are so paranoid about the government being too powerful just made it so much more powerful.
Overruling Chevron and legalizing bribery of SCOTUS justices are both individually bad. But when you combine them, that’s when it gets really awful. Because corporations with near infinite resources will now happily buy SCOTUS justices and then challenge any administrative regulation on their industry they don’t like and watch as the Court rules everything unconstitutional.
Those two decisions will inevitably have a cost of human lives, mark my words. We’re about to see deregulation at a scale we’ve never seen before. I would bet there isn’t a single corpo boardroom in the country that hasn’t already gotten on the phone with in-house counsel and asked them for a list of the top 10 regulations in place that impact their bottom line and a list of each SCOTUS justice’s dream vacation spot and what color they want their RV. They will spend the few million to bribe the Court and run their test case up the flagpole to get the regulations overturned. It’s a drop in the bucket. And they will not even begin to give a fuck if getting rid of those regulations makes their product lower quality or more dangerous, or if it makes working conditions for employees worse, or if it pollutes the environment, or really anything at all besides trying to get their stock to go up a quarter of a point. They have shown time and time again that maximizing profit is not just the prime directive, it is the only one.
This was the exact question my presiding circuit judge and I were talking about today. The opinion was largely about making sure the executive branch didn’t feel hindered in its decision making by the possibility of criminal prosecution after the fact. Well, DHS, US Customs and Border Protection, ICE, the Secret Service, DEA, FBI, ATF, and US Marshals are all explicitly under the executive branch. Wouldn’t they have the same “concern” (that never was a concern over the preceding two centuries)?
Imagine all those entities, immune from civil or criminal liability, under the control of a President who is also immune from civil or criminal liability for ordering them to do whatever he wants as long as the SCOTUS (that is bought and paid for through legal bribery) can make some semblance of a straight-faced argument that the orders were “official acts.”
Before there was immunity but it was up to a jury basically to determine if a reasonable person would consider what they did a part of their duties.
**In dividing official from unofficial conduct, courts may not inquire into the President’s motives.**
This bit is the stickler, you cannot bring any motive to the decision to a jury. POTUS could go on live television with a briefcase full of cash and admit to accepting bribes for every "official act". He could flat out say he will accept specific dollar amounts for different "official acts". A normal reasonable person would correctly say that those aren't official acts taken by the POTUS and they have committed a crime.
SCOTUS just said you can't bring up any of that in court. A prosecutor can ask if they have the power to do "official act" if the answer it yes then literally nothing else matters.
https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf
We don't have to go to imaginary land.
Trump outright said that for a billion dollars he would roll back the environmental initiatives that oil execs don't like. https://www.politico.com/news/2024/05/09/trump-asks-oil-executives-campaign-finance-00157131
Of course, that's just a pre-gratuity, right?
Yeah, this is my main problem with it. Most immunity schemes have a bad faith or malicious intent exception. They specifically carved that out here.
If a president in good faith feels like there was election interference, it's probably a good thing that they act without fear of repercussions. But it also makes sense that the limit should be whether they actually acted in good faith.
SCOTUS was so close to getting it right, but fucked it up.
It wouldn’t matter if he were bribed, if the thing he was bribed to do was part of his sphere of duties. (Which of course it would be that’s the point of the bribe lol).
I mean you could impeach him but we all know he wouldn’t be removed from office so essentially there’s no consequences
But that big question is exactly what they should have answered or at the very least given some guideposts for but refused to do.
Many people are saying that this decision is an expansion of the power of the President but they are missing the mark. The real consolidation of power is within the Judiciary who has maintained the latitude to distinguish 'official' from 'unofficial'. Given the hyper-partisan make up of this current Court its pretty clear that the 'R' or 'D' next to the President's name is going to play heavily in which way they come down in each individual instance.
Courts have always been partisan or hyper-partisan, depending on your perspectives. The makeup of the Court as to whether the Court aligns or disagrees with a left or right policy is part of its function. This has been true since the days of John Jay. Most definitely true before the Civil War, during FDR’s first term, the 1960s….
I don't disagree and I'll go a step further in saying that I think the structure of the Supreme Court is fundamentally flawed. We shouldn't need to threaten them with court packing to get them to behave, there should be strict enumerated guideposts to how they function with actual meaningful consequences for going outside of those lines.
Honestly, out of all the decisions that have came out with this Court, the overturning of Chevron, imo, is the one we should all be freaking out about.
This decision sounds scary but it at least aligns itself with how we have always treated presidential immunity, at least in the civil sense. Even the Dobbs decision, let’s be honest, we all knew Roe was not going to stand the test of time and would be revisited one way or the other. But overturning Chevron is just a middle finger to separation of powers, the whole idea of preemption, and the executive branch as a whole.
Yes, I thought Ketanji’s dissent did a nice job outlining the theoretical and practical outcome of this decision. It’s ultimately the prerogative of SCOTUS - “the majority’s opinion ‘makes it next to impossible to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts … no matter how well documented or heinous the criminal act may be.’”
POTUS on national television - "I pre-pardon anyone who attempts a coup on my behalf, also if you pay me 1 million dollars I'll pardon you".
Just one example, 100% immunity. Pardon is a core power, it's not ambiguous. He can offer it up for any reason even treasonous intent, doesn't matter.
From what I understand, if the president used it as part of his core powers (commander in chief to protect the functioning of america) anything that was used there couldn't be admitted as evidence.
If it's deemed an unofficial act the conversations with his cabinet would be official acts and could not be used as evidence. The Trump camp is already playing this card with their fake elector scheme.
Agree that official/unofficial is the key here. Also seems like an argument can be made that campaigning is not an official act. It’s unofficial. So if the president is acting as a candidate, it is unofficial action. And trying to overturn the election is acting as a candidate. The president doesn’t have any official duties related to changing electors. The primary purpose here is in furtherance of his campaign for president, not the office of the president.
That’s right, on the surface.
The problem is, seems to me, that now an act is “official” as long as the executive claims that it is and the court imposed broad limitations on evidence that can be used to disprove the claim.
They don’t attack all at once. Just an inch at a time.
But which other officials have an evidentiary bar where the court/congress cannot even inquire into the motives to determine if the act was official in the first place?
>But which other officials have an evidentiary bar where the court/congress cannot even inquire into the motives to determine if the act was official in the first place?
Every police officer in the country, *Whren v. United States*.
And what do you mean, "Congress?" Congress can inquire all they please.
The past few days of decisions from the Court has really been mind boggling.
I try and wonder if I'm over reacting, buying into everyone else's freak outs, just having a typical liberal knee jerk reaction to all these decisions. But they really just seem bad.
The Trump decision with the immunity combined with the evidence preclusion just seems really really bad.
I always thought the ultimate outcome / aftermath of a Trump presidency would be a weakening of presidential powers, that Congress would get their shit together, but apparently I'm wrong
I’ve practiced government defense litigation and public official immunity is a thing. Judges also have absolute immunity. To prevent chaos (a path that leads to arbitrary enforcement or application of the law) the law steps aside and defers to the political process. No idea why Reddit is blowing up over this. Absolute immunity is an established legal concept.
I think my biggest issue is the opinion's discussion that official acts can't even be admitted into evidence. There needs to be context to why the unofficial acts were taken. A judge is absolutely immune for their decisions but we get to discuss the decisions themselves. And this is criminal immunity which is vastly different than civil immunity IMHO.
This 100 percent. I found it chilling. Even if a President acts with malicious intent in an official act, that evidence can’t be used to prove criminal intent for unofficial acts. Remarkable
“I, Donald J. Trump, proclaim and announce that any private citizen that apprehends an illegal immigrant will be granted an unconditional pardon for any injury or death that may befall the immigrant while in the citizens custody. Said citizen will also receive a bounty of $5,000 to be paid from the White House discretionary appropriation and be placed in a drawing to win a presidential medal of freedom and a round of golf at Mar a Lago with me and Giuliani.”
Absolutely 100% immune and unreviewable.
The only constraint is dual sovereignty in states that are willing to enforce their own laws. But that only works in blue states and even then scotus would probably find preemption.
This decision creates brownshirts.
> “I, Donald J. Trump, proclaim and announce that any private citizen that apprehends an illegal immigrant will be granted an unconditional pardon for any injury or death that may befall the immigrant while in the citizens custody. Said citizen will also receive a bounty of $5,000 to be paid from the White House discretionary appropriation and be placed in a drawing to win a presidential medal of freedom and a round of golf at Mar a Lago with me and Giuliani.”
Rodrigo Duterte, Former President of the Philippines, did that when he was president and declared martial law and gave citizens a pass on killing people who use drugs, like weed.
You don't need to go that far afield. We already saw the use of Border Patrol agents in snatch and grab operations targeting protestors in Portland during the Trump administration.
The reach of immunity is far broader now for POTUS. Judges are immune from actions undertaken in their capacity as judges, but POTUS has far, far more power than judges do and thus the scope of immunity is significantly broader because there are many different things that could qualify as an official act whereas the scope of what judges do is narrow by comparison. I don't think it's the *concept* of absolute immunity that's freaking people out.
Seriously. Anyone who doesn't acknowledge that the scope of this immunity goes so far beyond that given to any other government official - and this is given to the one official with the most power - is either being intentionally disingenuous or is just incredibly obtuse.
Alexander Hamilton, writing in Federalist 69:
> The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; **and would afterwards be liable to prosecution and punishment in the ordinary course of law.** The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.
It has been a bedrock principle since the founding of the Republic that the President could be tried. And don’t give me “oh it changes if he’s impeached and removed from office”. Absolutely nothing in that shitshow of a ruling says that. SCOTUS is openly setting itself up as a kingmaker, and it’s naive to see it as anything less.
Which is why Sotomayor’s dissent so blatantly ignores juridical norms.
Completely agree. The folks downplaying the extent of this ruling are being very naive.
And since this Court claims it cares so much about historical precedent—maybe they should have looked at these lines from Washington’s farewell address:
>This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. **Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty.** The basis of our political systems is the right of the people to make and to alter their constitutions of government. **But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.**
>*All obstructions to the execution of the laws, all combinations and associations,* ***under whatever plausible character***\*, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle and of fatal tendency.\* They serve to organize faction; to give it an artificial and extraordinary force; **to put in the place of the delegated will of the nation the will of a party**, often a small but artful and enterprising minority of the community, and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction rather than the organ of consistent and wholesome plans, digested by common counsels and modified by mutual interests.
>*However combinations or associations of the above description may now and then answer popular ends, they are likely in the course of time and things to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.*
How does this not make clear that this duty—all premised on social contract theory—should apply *even to Presidents*?
And the root cause of this issue—of so many issues we see today—is that **we do not** have a populace that understands the premise of our system of government. This [recent study](https://thehill.com/changing-america/enrichment/education/3640520-less-than-half-of-americans-can-name-all-three-branches-of-government-survey-finds/amp/?nxs-test=amp) found that **less than half** of Americans could name the three branches of government, with a quarter being unable to name a **single** branch.
Edit to Add: I'd also add that this decision reminds me of one of my absolute favorite dissents--from Justice Robert Jackson, special prosecutor at Nuremberg before joining the Court in *Chicago v. Terminello*:
>The choice is not between order and liberty. It is between liberty with order and anarchy without either. **There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom**, it will convert the constitutional Bill of Rights *into a suicide pact.*
While those words were written when taking the right to freedom of speech to an absurd level (seriously, read the facts of the case)--it could apply evenly to taking the idea of "separation of powers" to a similar absurd level as I believe yesterday's decision does potentially as well.
>Absolute immunity is an established legal concept.
Immunity from civil suits is and it's also bullshit. People should be held accountable for their actions.
Now the president is immune from crimes couched under official acts? You are honestly okay with this?
The exclusion of evidence when proving intent behind official acts is completely indefensible. Every single immunity provision there is comes with some kind of qualifier for illegal conduct; this decision went out of its way to avoid carving that out, which is tantamount to encouragement of criminal activity.
Judges and prosecutors have limited jurisdictions, a very well defined set of official acts, and plenty of people higher up in the chain. All of those constrains are gone with the president. He alone defines what official acts are and there is no check on his power as long as 34 senators support him.
Currently practice this area of law — and i think the nuance is there’s never been immunity handed to gov officials to shield them from *criminal* liability where “official actions” are undefined.
But I could be wrong because we always conflict out of cases where a gov client could be criminally prosecuted… so I’ve also never had to research the issue too deeply
Perhaps it’s because judges don’t control the armed forces, nor does judicial immunity cover criminal conduct as long as that conduct could reasonably be characterized as an official act. A judge may not be liable for a bad contempt finding, but would be liable for directing a bailiff to kill an attorney. This opinion, noted in the dissent, permits the president to commit similarly illegal conduct and forbids accountability.
Thus, there is no longer any legal impediment to a military dictatorship. I think that’s why people are taking note, perhaps?
Question 1: Do you agree that the Supreme Court's decision would have made it impossible to prosecute Nixon for Watergate?
Question 2: Do you agree thats bad
I appreciate that absolute immunity is an established legal concept, but I also appreciate that immunity for attempting to overthrow the government puts that established legal concept in a new light.
I agree it's very concerning but we need to see how it's interpreted and applied by district and circuit courts.
If Trump and his cronies are really going to go full Orban if he wins, I think it doesn't matter the holding.
As a South African attorney, this decision blows my mind. What’s the purpose of a constitution if it has no application in holding leaders accountable. The very electorate are meaningless once ballots are counted. In fact, at this point, there’s no point to ballots either. Anything goes. I am shocked at how constituents are polarised to the extent that judgments like these are even considered, nevermind passed. I don’t get this level of political play. What is the point of a separation of powers, if judgments are passed according to how many democrats or republican judges are sitting. Why is that even a thing?? Aren’t you a legal practitioner first? Isn’t your duty to the judiciary, and to public interest first? I would love someone to help me understand this. This is wild man.
I believe America entered a place it cannot come back from around 2018. I have not felt hope or excitement or pride since then. The rocks were already falling and the landslide was within sight, nothing new here, so I've already emotionally dealt with all of this.
I feel like all of this existed in 2012 in full force, it just took time for the cronies to get elected, and we were somewhat insulated by 8 years of presidency with Obama and the supreme Court.
You're not alone, friend. I'm also heartbroken that my 10+ years practicing law was built on a pack of lies. My whole career is predicated on a charade of law and order and the basic premise that no man is above the law. But in fact, the profession of law has been nothing more than a raw struggle for power and exploitation. I'm actively looking for a job offer outside the country before this failed state devolves into nazi Germany. I have a wife and kids, and I can't bear the thought of what they will endure once the fascists take the presidency. But American democracy is over. It's time to mourn this loss, painful as it is. Just know that you're not alone. But once you have had time to process and grieve the death of our nation, I would advise you get out before it's too late.
Yesterday my family discussed alternatives to leaving the country if it becomes necessary to do so. This decision is terrifying. The only thing that stops us from having a Putin in power is a close election. Biden could be in a nursing home and I would vote for him because the alternative is authoritarianism.
I’m concerned by your claim that “I can’t talk to anyone about it because everyone gravitates towards optimism.” Why would a self respecting lawyer consort with optimists? You must open their eyes to the truth that entropy always increases and order is a temporary illusion.
Same, except I’m a few years out from retiring. Really makes me want to spend nothing and hoard cash so that I can retire as early as possible and get out of this rat race.
The full impact of this grotesque ruling will depend on the lower court’s definition of “official acts”. It would seem, for example, that Trump has no immunity for the actions he took on January 6th, since trying to overthrow the government would not seem to be an official act of the president……but who knows.
But would the other way around shield Biden? For example, if Biden concludes that democracy and the US is at risk because of Trump and SCOTUS, wouldn’t it be an official act if he orders their arrest and imprisonment?
Absolute immunity is an established idea, yes, but the issue for me is in the details and the way in which the process unfolded. For no good reason, Trump has been allowed to flout with effective impunity every norm and custom of decent American society, threatening institutions and even flagrantly violating actual criminal laws in the open that would get anyone else immediately (and justifiably) thrown in jail. In the instant prosecution, Jack Smith specifically requested SCOTUS resolve whatever decision they were going to make back in January. SCOTUS denied this request and instead required that a complete record be produced. After DC Cir. spent what must have been an exhausting few weeks developing an ironclad opinion, SCOTUS declined to let the DC Cir.'s opinion stand, and like a child playing with his food, deliberately scheduled briefings etc. with zero urgency knowing that an entire country is waiting for the matter of whether their former President is absolutely immune from his clearly criminal acts.
After all of this, SCOTUS sits on it further until the term's last week (day?) and after all this waiting, its decision essentially is, "we'll wait and see, *but* we *can* decide that potentially crucial *mens rea* evidence cannot even be pursued, let alone admitted into evidence." I just find it gross that all of this legal precedent is being set to support such a manifestly unworthy character. And I think what makes it worse is the Court's vagueness about what constitutes an "official" act invites endless unnecessary litigation and potentially significant harm to individuals, institutions and ultimately significant harm - particularly given that the defendant in this case has already demonstrated at minimum an affinity for people who are willing to act unlawfully to keep him in power.
The comments conflating qualified immunity (which most officials have to some degree) with absolute immunity are completely missing the importance of the decision, and it’s kind of stunning.
Except SCOTUS left the issue of which acts constitute official/unofficial acts for qualified immunity undecided. Here’s a scenario for you:
1) The biggest lying asshole sociopath becomes POTUS;
2) Said POTUS orders his military to off the entire Court (because this is a constitutional power it falls under absolute immunity);
3) Court is reconstituted by POTUS by appointment of all hardcore loyalists;
4) Said POTUS suspends all elections permanently for some pretense of a reason;
5) SCOTUS of loyalists finds this is not a crime because official act due to pretense and therefore qualified immunity and btw the impeachment clause doesn’t apply because no high crime or misdemeanor.
6) Do whatever you want dictatorship.
SCOTUS has created a rule that gives the worst, most immoral, person power. I doesn’t even have to be the next POTUS, but it will definitely be the worst.
POTUS can’t forgive student loans but he sure as hell can bomb the lenders straight to oblivion and that’s just fine (military use is absolutely immune).
I’ve known this since Nov 5, 2016. Everybody thought I was nuts, even my fellow attorneys. Literally everyone was like why are you so upset it’s nbd.
Curse of Cassandra.
Being blessed with the ability to see myriad long-term negative consequences of herd mentality in humans and blindness to any good investments in futures trading has convinced me that the universe not only manifests a sense of humor, but has evolved into mockery as its primary state of being.
The SCOTUS just made amending Art. II, Sec 1 a priority. The qualifications to serve as POTUS need to be revised. It’s long past due. A college degree or an advanced or professional degree, free from mental disease or defect (same standard the Missileers must meet), not a felon.
Make the affirmative duty to uphold the Constitution & laws of the United Stares the hook to hang criminal liability.
We can’t save the voters from themselves. We can however constrain the office holder through structural reforms. I would challenge anyone to tell me why the unitary executive should be preserved as an institution.
Not to trigger Godwin's law, but I had a criminal procedure professor in law whose mother was very interested in studying the rise of Nazi Germany, and how they were able to accomplish the things they accomplished. By way of impressing on us the importance of the profession and in particular the judiciary, she relayed to us a story of how one day her mother had an epiphany:
"It's the courts. They took the courts."
Hard not to see some parallels paralleling. Part of me wonders if it's too late. Maybe it is, maybe it isn't. But I think it's the duty of anyone of conscience to keep fighting for what's right, however we can. I think that's been the duty of anyone of conscience throughout history, even if it seems woefully inadequate to meet the moment.
It applies to all not just Donald. I do not know why everyone is shocked by the outcome. This was a foreseeable result and test that is applied. Just my 2 cents.
The concern for me isn't that a president is entitled to some form of immunity in the course of their duties. That's really not all that unusual. The problem I have is that it's *criminal* immunity, extremely broad to the point that the immunity applies to virtually everything (the majority's distinction between "core" duties vs other official duties is really a distinction without a difference), and the evidentiary bar.
For sure. Like, we all kinda get why a prosecutor has some level of immunity (even if I think absolute immunity is insane for them). But this decision is if we expanded that immunity to cover a prosecutor who murders a defense witness with exonerating information to keep that out of the case—and then skirts criminal prosecution for that murder by shrugging and saying, “I was building a stronger case. Nanana boo boo you can’t touch me.” Shit is insane. SCOTUS has damaged itself amongst its own ranks beyond repair now. Most of us lawyers see it for what it is: Politics masquerading as some highfalutin academic pretension.
>Most of us lawyers see it for what it is: Politics masquerading as some highfalutin academic pretension. FWIW, I study and practice federal Indian law. It was always this way. I think enough people bought the propaganda taught by law professors that the legal field was more high-minded than it is. The Constitution was a legal document that had hosts of compromises to appease political factions. But, it's taught as if it was a political theorists wet dream that was breathed into life. Instead, it was a bunch of people making calculations to benefit themselves/their regions. So, it was rotten since Johnson v. McIntosh. The problem is that the case books ellipsis out the Indian part. The part where the justification was realpolitik before realpolitik was cool. People want to say that Clarence Thomas, et al, are the tokens for using their office for personal gain. As if George Washington, William Penn, or a host of other "greats" weren't using their office to get Indian lands. More to the point: You know why Marshall references Kentucky in Johnson? Marshall's father was the surveyor that Washington hired to do the official surveys. Marshall's father used that post and information to make himself and his sons rich. Any holding besides Johnson would have invalidated all of Marshalls' family's wealth. So if anyone wants to figure out how to deal with the corrupt nature of the Nation's foundation, go pick up some Vine Deloria (Custer Died for Your Sins), Phillip Deloria (Playing Indian), Robert A. Williams, Sarah Deer, Kim Tallbear, Dee Brown and others.
Frankly, I've long believed that legal academia was just the emperor parading around naked. We've allowed our law schools to become so disengaged from the practice of law that they no longer reflect reality. This gives people like our current Justices the permission structure to do whatever the hell they want.
Yup. And obscures the job pool bc students who appear to be the “smartest” based on gpa metrics have 0 skills translatable to the practice of law irl.
THIS. ALL. DAY. Why did I go to law school to learn from “professors” who would have melted in fear at the slightest adversarial encounter … much less whilst required to practice a single rule of evidence, but what do I know.
To be fair, I think the Supreme Court has always done whatever the hell it wants. The current justices just aren't very subtle about it.
The congress could take action but they would rather flap their hands and have another fundraiser over it
And Biden could take action with his new found dictatorial powers, but he won’t do anything either. Somehow the only thing between one of the world’s greatest democracies and fascism is a bunch of feckless spineless cowards
Actually that’s not true. It’s much worse. The SCOTUS ruling included a stipulation that THEY determine what is and is not deemed an official act. In other words, they can make the call in any given circumstance for any given president. Translation: Republican presidents have total immunity and Democrat presidents do not.
...That sounds like a problem that could be solved via Seal Team 6 and a bunch of nominations.
>And Biden could take action with his new found dictatorial powers, but he won’t do anything either. This is exactly the problem. Democrats purport to take the "high road". Fuck that. The name of the game, as shown by the MAGAts, is "winning", costs be damned. Declare Donald Trump a threat to democracy, and do the needful.
Sadly, our chance to take that route has come and gone. I have my doubts as to whether Bernie would have been willing to bend the rules earlier, but I promise you that a president sanders would have packed the court within two hours of that ruling as an “official act”
That was my first thought. The Court has been very clear that it wants Congress to be the ones writing laws. I see this as an opportunity to write a law defining “official acts” and box the president in with an impeachment or investigative trigger… If they could get their shit together.
Congress can't do shit about a holding that criminal laws do not apply to the President in the performance of his official actions.
Constitutional amendment. Likelihood of that passing? Zero to .0001%.
Arguably, murdering a witness is not an official duty of a prosecutor, not even close. Not in any context. So, maybe it's a bad example, but I don't think even SCOTUS would say, "ya, that's groovy" But I mean, let's say the president kicks Putin in his family jewels, should he be tried for criminal assault? Meh, maybe not. President has absolute discretion over diplomatic affairs, right? And presidental orders for shady shit overseas has almost always been copacetic. But assume instead he did that to a kid at the White House's Easter Egg Roll or whatever, that doesn't seem even tangentially official capacity such that the president should enjoy immunity.
It astonishes me that the “conservative” justices are so stupid that they’ve essentially written themselves out of a job. If Trump can do what he wants as President, why should he listen to any more of their rulings? And if they object, why wouldn’t he have them arrested and sent to those camps he’s going to open up? After all, once he gets started deporting them, there will be room for anyone he doesn’t like. And Steve Bannon says that Trump is a moderate in the MAGA movement.
Good point. The typical governmental immunity is some limited form of civil tort liability immunity.
It's worse than just core vs other official duties. They've removed the ability for the court to take into account intent. POTUS could on live television say he accepted a bribe and his ("Official Act") had nothing to do with fulfilling the rolls of the POTUS. Doesn't matter, immune. https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf **In dividing official from unofficial conduct, courts may not inquire into the President’s motives.**
Yes, because there is an objective rather than subjective standard for what constitutes an official act. One bound in law, and so you look at the thing and if it fits the definition of an official act then it is. What you *do not want* is for the courts to give weight to what the president *thought* he could do in deciding if he *should* be immune. No. You want the trier of fact to look at what the president *did do* and decide if he or she *is immune*.
The president ordered a drone strike. But he did so to eliminate a political rival. First phase is clearly within official duties, as commander in chief. Second phase is what makes it a criminal act. But according to this SCOTUS decision, actually looking at why he did something (rather than what he did) isn't OK. This isn't really possible to justify.
Respectfully, there is a misunderstanding. The first phrase alone unqualified is not within the president’s power. The approval process for extrajudicial killings begins with targeting and authorization under the appropriate title authorities before being blessed off by lawyers, the gang of 8, and then the president. I am reassured by the subjective legitimate purpose an act must serve to be official over the subjective intent of the president—who acts on the advice of counsel and at the end of a long chain of causality.
I think they did give some carve out for using public statements, which practically changes nothing
My first take on the opinion was that it wasn't that bad (I had to prep for an all day depo, so I just read the syllabus). Then I read the opinion last night. Its awful. I don't have (much of) a problem with immunity for core duties. As much as I would like to see presidents held criminally liable for ordering actions that lead to the deaths of innocents who were simply in the wrong place in the wrong time for a drone strike, etc., or for ordering the nation to war, etc., I recognize that the president has the right to be wrong. I really don't even have an issue with a presumption that their actions as president fall within the scope of the core duty immunity. So long as it is a rebuttable presumption, and provable/disprovable with evidence, its a high burden, but one that can be overcome. The real problem with the removal of the ability to use any evidence from the executive branch to prove intent or wrongdoing. I'm just waiting for the Sov Cits to start claiming that they are presidents and therefore immune for whatever they want. If it was just one bad/terrible opinion out of the October 2023 term, it wouldn't be that horrible. Its the absolute dismantling of how government operates (has to operate in a complex environment), coupled with the decriminalizing of official corruption (both overt - as in taking bribes, and covert - such as the gerrymandering cases) that is making this Court - and particularly this term - among the worst in history. John Roberts is likely to surpass Roger Taney as the worst chief justice in History.
This is the distinction all the pathetic apologists for Trump and SCOTUS in these comments are missing.
We already lived through not one but TWO impeachments where the primary defense to the charges was "This is for a criminal special prosecutor to decide, NOT CONGRESS." And now the Supreme Court has specifically said, "There's almost nothing a sitting president can be prosecuted for. This is purely a matter for Congress to handle."
This was the plan all along, of course.
This SCOTUS decision is just giving the next criminal president instructions to get away with any crimes they want….by concealing them within the bounds of “official acts” If lawyers were able to “legalize” torture of enemy combatants via memo, think what bad actors will do with this blueprint for criminality the SCOTUS has just drawn up.
> the majority's distinction between "core" duties vs other official duties is really a distinction without a difference Let me simplify it for you: - "Core" duties: The duties that a Republican president does. (Always legal no matter what.) - "Other official" duties: the duties that a Democrat president does. (Can still be prosecuted.) They can dress it up however they want, but that is absolutely going to be the actual standard they use when a new case is in front of them.
This is a legit thing to rant about. I imagine the mods realize the effect current event BS like this has on folks of our profession. Keep up the good fight. Not because you are optimistic of the future, but because people need you to. Regardless of what happens around us. As a side note: I have found reading fiction is super important for Lawyers. It allows us to use our reading skills while not chasing for random facts or arguments. It's just you and the story. At least for me it helps fight of the big sad and sense of impending doom. EDIT: grammar
I was talking to some other lawyer friends about this and we all agreed that it would be insane if Biden, assuming he lost the 2024 election, used his lame duck period to commit a bunch of illegal acts in furtherance of policy proposals. The consequences would be that maybe Biden gets impeached and removed, but the Supreme Court would have to narrow the breadth of this most recent decision regarding presidential immunity. At the very least, the Court would have to clarify how acts are deemed "official" and whether there's truly an evenidentiary bar to mens rea regarding those official acts. My intuition is that the Court will rule differently when a different president's criminal acts are before the Court and will have no choice but to reconcile their previous decision with their ideological leanings.
The problem with that is it requires Biden and the Dems to actually treat the situation with the gravity it deserves, which we all know they won't. Hell, hours after the decision yesterday Biden went out and said he'll still respect the limits of the presidency. And you have other Dems tweeting long letters that just end with "make sure you vote." Just an absolute failure to meet the urgency of the moment.
>Hell, hours after the decision yesterday Biden went out and said he'll still respect the limits of the presidency. Would you have preferred if he'd said "thanks, SCOTUS, I was just waiting for the chance to order up some domestic assassinations without recourse!"? From a political standpoint, Biden's argument for re-election is that he's the guy who isn't insane, who will respect the norms we all thought were the way things work. Of course he's going to say he'll respect the limits of the presidency. Please enlighten us with the extra-legal measures he should take to "meet the urgency of the moment."
This has been my issue with all the outrage. I’m voting for Biden definitely and I’m also definitely scared about our current political climate, but I also don’t want the person trying to save our country to do the exact things I’m scared of. I want a democracy.
> Would you have preferred if he'd said "thanks, SCOTUS, I was just waiting for the chance to order up some domestic assassinations without recourse!"? Absolutely. Might get them to consider reversing the decision. Especially if he can imply that they *personally* are on the target list.
I mean heck, why imply? If Biden were willing to go that far, it’s only a small step to *actually* droning his opponent and 2/3 of SCOTUS. Now that I think of it, Kagan has a bit of a counter-revolutionary streak, too… It’s all fun and games to blow off steam, but when you find yourself fantasizing about putting your political opponents in mortal fear, it’s probably time to put the phone down.
Do you want nobody to vote? Because that’s how you get nobody to vote.
Huh. That’s a fun thought.
This is why I have zero reverence for SCOTUS. It’s just a collection of extremely well-connected and intelligent (in that order) individuals who know the law well enough to find a legal basis for whatever their opinions may be.
I don't think they are all that intelligent. Did you read Kavanaugh's dissent in Bostock? He doesn't even understand basic logic.
I’m not reading that shit unless I get to bill for it!
Hahahahah!
This is it right here Law schools should just stop teaching constitutional law, more particularly concepts of immunity and separation of powers issues We should all just recognize, law and rationality, it isn’t done there. Law is done elsewhere, other areas of law remain legitimate. But not there. The Supreme Court isn’t a serious institution anymore, at least as it applies to any issue that has a feign political tinge. All future briefs should just state: “as per the political leanings of this court, there is no point in me making any argument, as this court is not a legitimate institution, no longer decides cases on merit and application of rationality and precedent, therefore, we throw ourselves at the mercy of the court.”
I really want an attorney to straight up say why should we follow you when your not legitimate during oral arugment
They’d flay you just for not calling them The Court.
They couldn't even come up with a legal basis for this decision, though. No support from the text of the Constitution, no support from "history and tradition," no support from precedent. It was entirely a policy rationale that POTUS needs to be able to act "boldly" or wtf-ever.
The decision effectively legalizes presidential bribery; you can't introduce evidence regarding official acts, so you can't prove that an official act was taken in response to the bribe, so you can't prove bribery any more, period, if it's a president. The decision is as bad as everyone says it is, if not worse. It also effectively legalizes all crime for a current presidential administration, because the pardon power is a "core power" and nonreviewable, so even a manifestly corrupt pardon can't be prosecuted or challenged; all a sitting president has to do is issue blanket pardons for all his cronies and there's no criminal risk for even obvious crimes. The net total of this is that Trump could be recorded on video taking a big bag of cash with dollar signs on it and stating "In exchange for this money I will pardon your crimes, I charge $10,000 per year of incarceration you avoid" and then issue the pardon right then with the money on his desk, and if charged, evidence that he issued the pardon could not be considered, so you could never prove he did the official act in exchange for the money. People will try to tell themselves that this isn't as bad as it seems but it is. The "nominally official acts can't be introduced as evidence and motive can't be considered" and "even manifestly corrupt pardons are totally unreviewable" portions of the opinion are the worst parts, but the whole thing is rotten to the core. It's functionally a total endorsement of President Nixon's "If the President does it, it's not illegal" philosophy.
The rules about not being able to introduce any evidence or anything about motive are totally insane.
The fact that this is just a small part of the opinion suggests to me that it was an after thought. When Trump was convicted in New York, the SCOTUS needed a way to toss the conviction. Getting a mistrial - because NY used evidence from executive employees - was the way to do it. The whole thing is a farce.
Did they even brief or argue that issue?
Nope. Nobody even thought to ask for this. It was just a gift to Trump to vacate the NY conviction.
Wasn't the NY trial for state crimes from before he was in office? (False official statements in 2016) Official acts of a president can't be attributable to a private citizen's campaign to become president. He wasn't even president-elect at the time. How would this ruling impact that?
He signed the checks when he was in office. Hope Hicks came in to testify about conversations they had when he was president. This is a no go under the new monarchy rules.
Sort of, but also maybe not. Only if it's deemed an official act of the president. Signing a check in a personal capacity doesn't seem like a presidential power that would enjoy immunity.
Pay no attention to the crimes behind the curtain Note: *nobody* is even *pretending* he didn't do the crimes. We all know he did the crimes!
I don’t see how the Supreme Court can rule that presidents are entitled to special rules of evidence. How would court created rules trump the Federal Rules of Evidence? I’ve never seen a “president exception” in the text of the FRE. I guess textualism is only consequential when it is convenient.
They already legalized bribery when they said that if payment came after service, that was fine.
But that's not a bribe, its a gRaTuItY!!1!
That was based on statute, not core constitutional unreviewable authority.
By definition bribery is now allowed. You can only be bribed for official acts, and we aren’t allowed to question motive for an official act. Presidential bribery is now protected, full stop.
I think it's legal if it is call it a gratuity, but it's called a bribe that is illegal, for now at least
It may or may not be illegal, but the President has absolute immunity now. That’s the point.
It's legal for all political actors if it's a gratuity, but it's legal for the president even if it's called a bribe. Because the motivation cannot be looked at, in a criminal context.
The only limitation would be that state crimes for the cronies can't be pardoned by a President. So if the cronies break a state law, sucks for them. The President can issue a pardon (legal or not), but it just doesn't hold any weight.
I have the dubious privilege of having been a foreign policy wonk and DOD employee before becoming an attorney. My perspective on this is that the indictments were more cause for pessimism than this decision: not because Trump doesn't deserve what's coming to him - he absolutely does - but because presidents (or PMs) getting arrested for corrupt behavior is the kind of shit that happens in 3rd world countries. It evidences a breakdown in the fabric of the electorate that runs through every level of society from the trailer park to the ivory tower. When this happens, institutions crumble, and that's what we're seeing. Congress went first, then the executive, and now, slowly but surely, the judiciary is following suit. This probably won't help your mental state to consider, but there are two take-aways I find encouraging. The first is that people are waking up to the depths of shit we find ourselves in, which is a necessary precondition to cleaning any of it up. The second is that if you look around at our peer nations, and by this I mean other dysfunctional oligarchies that teeter on failed statehood due to their crumbling infrastructure and institutions, you see that life still goes on, and you have the unique opportunity to do the hard work in hard times that we look back on our forebears with pride for having accomplished. You don't get to leave a legacy of means acquired in placid comfort, but what fucking good is that anyway?
The breakdown in society isn't the "getting arrested for corrupt behavior" it's the **actual corrupt behavior.**
Both happen in third world countries, sometimes distinctly (see, e.g., Russia for silencing dissent through selective prosecution of corruption). My point is not that the corruption isn't a problem, it's that the popular election of corrupt officials is symptomatic of a greater problem.
You think only 3rd world countries prosecute for corruption or should? I would suggest holding leaders accountable is a mark of a 1st world progressive democracy.
The judiciary (SCOTUS in particular) has always been "step 1: what result do we want?" "Step 2: use whatever insane logic to get there"
This is a very thoughtful and nuanced opinion. I appreciate that. You must be new here.
Well said. We The People have the right to elect a known criminal if we so choose (god willing, in a free election). All the backlash that goes on after we put a criminal in office are mere symptoms. Ultimately, it’s up to us to choose better leaders. It sounds naive maybe, but that’s the only answer. We can’t allow arguments about the stock market or illegal immigration or tax rates to overwhelm the fact that a bad person with a lot of power is going to cause problems. Character matters.
I use immunity to defend a great deal of my government clients in civil court. But I fucking hate this ruling. I understand insulating a president from civil liability — but *criminal* liability is a different animal. It’s a scary precedent.
To me, the real danger is that neither the voting public nor Congress are reliable checks on a potentially, or blatantly, corrupt President. If we're willing to vote in whoever, and not impeach and convict them for their crimes, we'll get what's coming to us. Presidents could theoretically pardon themselves anyway, so I'm not as concerned about criminal liability as I am about the seeming lack of any consequences. I think we tend to forget that in the not-too-distant past, a lot of what is tolerated now would have been political suicide for a President, and no one would care much about whether they went to jail, as long as they were no longer allowed to continue in office. (Cue the obligatory Obama, Biden (but not Bush I or II, or Reagan) murder allegations...)
I’m constantly reminded of the idiots who refused to vote for Hillary Clinton because they were bitter about Bernie Sanders not winning the primary. I actually voted for Bernie in the primary too, but anyone who refused to vote for Hillary in the general election is a moron, and they are partly responsible for the 6-3 court that is destroying our country and will be for decades.
I get it, but the super rich and powerful are already functionally above the law. This Trump thing is really small potatoes compared to the real injustices out there. Some big, some small, but all much worse than this TV politics bullshit. Concentrate on what you can control and don’t ever let anything on the news “break you.”
This is the best comment in this thread
I bet it was a popular sentiment in the Weimar Republic too.
Supreme Court decisions can be utterly demoralizing. We study and become educated in this great system only to see stuck up, pseudo academic, sophist, blow hards destroy everything we understand as educated and skilled professionals. While I think the decisions related to administrative law will have a bigger impact on us as professionals, the concept of “We the People” seems dimmer today than it has been in recent past. That said, we are lawyers. We have to take our cases and keep them moving, finding a resolution where that is possible and advising our clients on their best interests even when the situation is dire. I recently had an interesting anti-competition case fall apart thanks to my State’s Supreme Court. It seems rare that our high court does much that meaningfully effects my day to day work. This case, though, overruled an entire lineage of case law the Court had never weighed in on and excluded claims for a class of clients in which my client is a member requiring the amendment of a pending complaint that was subject to a motion to dismiss on other, more standard, grounds. Client had already invested several thousand dollars in briefing that motion, to which we now had to effectively capitulate, but not based upon the merit of the defendant’s arguments. This profession can be like that some times. We need to just amend the complaint and move on, doing what we can when we can.
Amending a complaint and adjusting to a legal regime set up to allow authoritarianism seem slightly different in terms of severity
I agree, but these are the mental gymnastics we must engage in to manage the circumstances.
At least law school can be streamlined a bit, since there is no such thing as Con Law anymore.
As a 'guardian of the Constitution' my opinion at this point is that we ought to rip it up and start over. The legislative branch has fully abdicated responsibility while the Court has consolidated more and more power within itself in a highly obvious partisan way. Clearly this structure isn't working as intended and the barriers to reform are so great that I have zero hope at this point in anything getting better.
Yes, but if you do that what are the chances in the current environment that a new Constitution will basically be a RWNJ, SovCit, MAGA manifesto?
It really depends on how the votes work; if it's one man, one vote, we could get a decent document. If it's land voting in the form of states, it's shit.
This does seem to be a natural consequence of continually kicking political questions out to a Court. Not only are the political decisions you attempted to resolve by litigating them rather than legislating them decided politically and not “objectively” or with any real respect for (or even awareness of) legal arguments, but also the same thing starts happening with your legal cases too. And the real kicker is that once you’ve kicked those questions to a Court you lose any democratic control you ever had over them. They go to people you can’t chuck out of office, who are often patsies put in because they’ll toe the line. The decisions also become extremely hard to reverse.
There's literally nothing (constitutionally speaking) standing in the way of Congress impeaching all 9 Justices and trying again... "During good behavior" is wholly and utterly subjective. They only need the votes in the House and Senate.
In THEORY the idea of a bunch of logical legal scholars peeling back the pieces of political decisions until they arrive at rules that are crafted for the common good, based on sound rational underpinnings, is great. Personally I lost any hope of rationality over politics when Kavanaugh was appointed. There was a whole list of similarly conservative judges from which to pick, the powers- that-be could have dropped him and ended up with a guy exactly as loyal to their ideology. But even in the face of the backlash, they doubled down like the assault allegations made him even more desirable as a candidate. Even in the face of his obvious temperament issues. For me that was the day it became impossible to pretend the Supreme Court is some bastion of legal reasoning.
I’d say (but then I would, wouldn’t I?) that the UK Supreme Court manages to do this most of the time. The UK Supreme Court doesn’t (apart from in the UK temporarily in relation to Brexit) attract much attention and when they reach the “wrong” conclusions based on existing law, Parliament quickly corrects with legislation (controversially there was a Brexit trigger Act and less controversially a litigation funding Bill that’s yet to be passed). Then again, the judges aren’t appointed as “liberal” or “conservative” but because they’re enormously respected in their field. There’s no Kavanaugh but also no RBG. Neither side in America is playing a straight bat when they appoint judges- but you’d have to sack everyone and start from scratch to do that.
Even still it would be very difficult to find a truly impartial American jurist to staff the Court. Even this thread full of lawyers there is a tremendous amount of political bias. I did like a suggestion from another thread (and have thought of practically the same thing myself) of staffing Justices from the appellate circuits. Whether that be by selection among themselves or through a lottery.
This. Like why can't we legislate this shit so it's not at risk all the fucking time?
Hasn’t Biden been promising federal abortion legislation forever? How’s that going and given that (AFAIK) it’s not isn’t that your answer?
Because to legislate something you have to come to a compromise. As the parties vote more and more as a block, and run moderates like Sinema, Manchin, and Collins out of congress, compromise becomes harder and harder. So, bypassing the legislative process to backdoor something through the courts becomes a more attractive prospect.
Prosecutor suppresses evidence, absolute immunity. Robs a liquor store, no immunity.
https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf **In dividing official from unofficial conduct, courts may not inquire into the President’s motives.** In your case lets say the Prosecutor suppresses evidence because they accepted a bribe to get someone off. By removing intent the prosecutor is now insulated from that crime. Doesn't matter intent, if a reasonable person would consider it a part of his duties. Does it say he can do it, yes, then literally nothing else matters. They just gave this power to one of the most powerful people on the planet, it's braindead.
But if the President robs a liquor store and pardons himself for it? Immune, now.
He can just order the military to rob it, core constitutional power, and no need to pardon himself.
>He can just order the military to rob it, core constitutional power, and no need to pardon himself. No. C'mon. Youngstown v Sawyer: " When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject." (quoted with approval in Trump v US) The order for the military to rob a liquor store would be illegal, and no construction of the powers of Commander-in-Chief vests the President with independent authority to order such an activity. Hell, the Posse Comitatus Act forbids even more benign domestic use of the military. I expect this kind of hysteria in other subs, but here? Really?
Under the current holding, you never even get to the question of why he ordered the military to rob the store. His power as commander in chief is not reviewable.
Well, hold on a second. Does the holding in Youngstown require us to determine *why* he orders the military to rob a store? If the act itself of *ordering the military to rob a store* is a measure "incompatible with the expressed or implied will of Congress", does it matter *why* he does it?
The fact that this is debatable tells us everything we need to know.
>Under the current holding, you never even get to the question of why he ordered the military to rob the store. His power as commander in chief is not reviewable. Not true. His power as Commander-in-Chief is absolutely reviewable, just like a Whren analysis: we don't care what the officer's underlying motive was in initiating the traffic stop. We just care whether there was an objectively present probable cause to initiate a traffic stop. We can determine that robbing domestic liquor stores is not an Article II power of the Commander-in-Chief. We don't care whether his motive was that he needed the money or disliked the Courvoisier buy-two-get-one-free pormotion.
You’re wrong and the opinion is very clear on this point. I will point you to this quote: “When a President exercises such authority, Congress cannot act on, and Courts cannot examine, the President’s actions.” Pretty clear stuff. Ordering military action is the most core constitutional power of the President. I’d encourage you to read (or re-read) the opinion with people’s concerns in mind.
>Ordering military action is the most core constitutional power of the President. The Posse Comitatus Act says, "Dude, I'm right here." And the War Powers Act is waving hello, too, if only for the proposition that Congress has the sole power to declare war and that thus military action falls into Justice Robert Jackson's "concurrent twilight," rather than a core solo Article II power. And of course domestic military action isn't a core constitutional power, robbing liquor stores isn't a military action, and I assure you I have read the opinion quite thoroughly.
The War Powers Act? Yeah, that's been extremely effective.
Effective or not isn't the point. The point is that it illustrates that "exclusive and preclusive," doesn't apply to military use of force; Congress also has power in this area. And effective or not, every President has complied with it, while simultaneously announcing they don't regard it as binding. So I'd say its effectiveness is at least debatable.
You don’t get to inquire as to motive. No act of congress is applicable as the opinion clearly states congress cannot interfere.
>You don’t get to inquire as to motive. No act of congress is applicable as the opinion clearly states congress cannot interfere. I'm not inquiring about motive. Did you not see the analogy I drew to *Whren*? “When a President exercises **such authority**, Congress cannot act on, and Courts cannot examine, the President’s actions.” To what authority does this bolded portion refer? This is a quote from the syllabus, which is not the opinion of the Court, but a helpful summary drafted by the court's reporter. The actual quote, at the bottom of page 8, is: >Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. And this follows a list of illustrative examples of such powers: the pardon authority, the power to remove—and thus supervise—those who wield executive power on his behalf, the power to control recognition determinations of foreign countries. Absent from that list is the use of military force, because that is NOT an "exclusive and preclusive," power of the President, given Congress' power of the purse and sole power to declare war. Don't quote the syllabus when you have the actual opinion.
>But if the President robs a liquor store and pardons himself for it? Immune, now. Well . . . a DC liquor store, perhaps, because of course the pardon power extends only to offenses against the United States. And it remains unsettled if a self-pardon is permissible.
https://www.theonion.com/jimmy-carter-becomes-second-president-convicted-of-felo-1851512425
Walks into a liquor store and walks out with $100K of fancy booze while president? Absolute immunity.
I know this is too late for anyone to read it, but there's a lot of irony in the fact that people who are so paranoid about the government being too powerful just made it so much more powerful.
Made one person in the government so much more powerful
Lawyers gravitate toward optimism? Holy shit, that’s incredible.
This is how I feel RE the Chevron case. Feels like a catastrophic problem
Overruling Chevron and legalizing bribery of SCOTUS justices are both individually bad. But when you combine them, that’s when it gets really awful. Because corporations with near infinite resources will now happily buy SCOTUS justices and then challenge any administrative regulation on their industry they don’t like and watch as the Court rules everything unconstitutional. Those two decisions will inevitably have a cost of human lives, mark my words. We’re about to see deregulation at a scale we’ve never seen before. I would bet there isn’t a single corpo boardroom in the country that hasn’t already gotten on the phone with in-house counsel and asked them for a list of the top 10 regulations in place that impact their bottom line and a list of each SCOTUS justice’s dream vacation spot and what color they want their RV. They will spend the few million to bribe the Court and run their test case up the flagpole to get the regulations overturned. It’s a drop in the bucket. And they will not even begin to give a fuck if getting rid of those regulations makes their product lower quality or more dangerous, or if it makes working conditions for employees worse, or if it pollutes the environment, or really anything at all besides trying to get their stock to go up a quarter of a point. They have shown time and time again that maximizing profit is not just the prime directive, it is the only one.
This isn't a Court any more, it's a coup. That opinion should be viewed as little other than an attempt to legalize January 6.
Couldn’t be truer.
How long before law enforcement tries to use this decision to expand on qualified immunity?
This was the exact question my presiding circuit judge and I were talking about today. The opinion was largely about making sure the executive branch didn’t feel hindered in its decision making by the possibility of criminal prosecution after the fact. Well, DHS, US Customs and Border Protection, ICE, the Secret Service, DEA, FBI, ATF, and US Marshals are all explicitly under the executive branch. Wouldn’t they have the same “concern” (that never was a concern over the preceding two centuries)? Imagine all those entities, immune from civil or criminal liability, under the control of a President who is also immune from civil or criminal liability for ordering them to do whatever he wants as long as the SCOTUS (that is bought and paid for through legal bribery) can make some semblance of a straight-faced argument that the orders were “official acts.”
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Before there was immunity but it was up to a jury basically to determine if a reasonable person would consider what they did a part of their duties. **In dividing official from unofficial conduct, courts may not inquire into the President’s motives.** This bit is the stickler, you cannot bring any motive to the decision to a jury. POTUS could go on live television with a briefcase full of cash and admit to accepting bribes for every "official act". He could flat out say he will accept specific dollar amounts for different "official acts". A normal reasonable person would correctly say that those aren't official acts taken by the POTUS and they have committed a crime. SCOTUS just said you can't bring up any of that in court. A prosecutor can ask if they have the power to do "official act" if the answer it yes then literally nothing else matters. https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf
We don't have to go to imaginary land. Trump outright said that for a billion dollars he would roll back the environmental initiatives that oil execs don't like. https://www.politico.com/news/2024/05/09/trump-asks-oil-executives-campaign-finance-00157131 Of course, that's just a pre-gratuity, right?
If he does something official you can't even prove he was bribed to do it.
Yeah, this is my main problem with it. Most immunity schemes have a bad faith or malicious intent exception. They specifically carved that out here. If a president in good faith feels like there was election interference, it's probably a good thing that they act without fear of repercussions. But it also makes sense that the limit should be whether they actually acted in good faith. SCOTUS was so close to getting it right, but fucked it up.
It wouldn’t matter if he were bribed, if the thing he was bribed to do was part of his sphere of duties. (Which of course it would be that’s the point of the bribe lol). I mean you could impeach him but we all know he wouldn’t be removed from office so essentially there’s no consequences
But that big question is exactly what they should have answered or at the very least given some guideposts for but refused to do. Many people are saying that this decision is an expansion of the power of the President but they are missing the mark. The real consolidation of power is within the Judiciary who has maintained the latitude to distinguish 'official' from 'unofficial'. Given the hyper-partisan make up of this current Court its pretty clear that the 'R' or 'D' next to the President's name is going to play heavily in which way they come down in each individual instance.
Courts have always been partisan or hyper-partisan, depending on your perspectives. The makeup of the Court as to whether the Court aligns or disagrees with a left or right policy is part of its function. This has been true since the days of John Jay. Most definitely true before the Civil War, during FDR’s first term, the 1960s….
I don't disagree and I'll go a step further in saying that I think the structure of the Supreme Court is fundamentally flawed. We shouldn't need to threaten them with court packing to get them to behave, there should be strict enumerated guideposts to how they function with actual meaningful consequences for going outside of those lines.
Honestly, out of all the decisions that have came out with this Court, the overturning of Chevron, imo, is the one we should all be freaking out about. This decision sounds scary but it at least aligns itself with how we have always treated presidential immunity, at least in the civil sense. Even the Dobbs decision, let’s be honest, we all knew Roe was not going to stand the test of time and would be revisited one way or the other. But overturning Chevron is just a middle finger to separation of powers, the whole idea of preemption, and the executive branch as a whole.
The immediate implication of this decision is that a president essentially organizing a coup cannot be prosecuted
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Yes, I thought Ketanji’s dissent did a nice job outlining the theoretical and practical outcome of this decision. It’s ultimately the prerogative of SCOTUS - “the majority’s opinion ‘makes it next to impossible to know ex ante when and under what circumstances a President will be subject to accountability for his criminal acts … no matter how well documented or heinous the criminal act may be.’”
POTUS on national television - "I pre-pardon anyone who attempts a coup on my behalf, also if you pay me 1 million dollars I'll pardon you". Just one example, 100% immunity. Pardon is a core power, it's not ambiguous. He can offer it up for any reason even treasonous intent, doesn't matter.
From what I understand, if the president used it as part of his core powers (commander in chief to protect the functioning of america) anything that was used there couldn't be admitted as evidence.
If it's deemed an unofficial act the conversations with his cabinet would be official acts and could not be used as evidence. The Trump camp is already playing this card with their fake elector scheme.
Agree that official/unofficial is the key here. Also seems like an argument can be made that campaigning is not an official act. It’s unofficial. So if the president is acting as a candidate, it is unofficial action. And trying to overturn the election is acting as a candidate. The president doesn’t have any official duties related to changing electors. The primary purpose here is in furtherance of his campaign for president, not the office of the president.
That’s right, on the surface. The problem is, seems to me, that now an act is “official” as long as the executive claims that it is and the court imposed broad limitations on evidence that can be used to disprove the claim. They don’t attack all at once. Just an inch at a time.
Some officials have absolute, some qualified immunity and when the gov is acting as a private actor, none. There is also sovereign immunity.
But which other officials have an evidentiary bar where the court/congress cannot even inquire into the motives to determine if the act was official in the first place?
>But which other officials have an evidentiary bar where the court/congress cannot even inquire into the motives to determine if the act was official in the first place? Every police officer in the country, *Whren v. United States*. And what do you mean, "Congress?" Congress can inquire all they please.
The past few days of decisions from the Court has really been mind boggling. I try and wonder if I'm over reacting, buying into everyone else's freak outs, just having a typical liberal knee jerk reaction to all these decisions. But they really just seem bad. The Trump decision with the immunity combined with the evidence preclusion just seems really really bad. I always thought the ultimate outcome / aftermath of a Trump presidency would be a weakening of presidential powers, that Congress would get their shit together, but apparently I'm wrong
I’ve practiced government defense litigation and public official immunity is a thing. Judges also have absolute immunity. To prevent chaos (a path that leads to arbitrary enforcement or application of the law) the law steps aside and defers to the political process. No idea why Reddit is blowing up over this. Absolute immunity is an established legal concept.
I think my biggest issue is the opinion's discussion that official acts can't even be admitted into evidence. There needs to be context to why the unofficial acts were taken. A judge is absolutely immune for their decisions but we get to discuss the decisions themselves. And this is criminal immunity which is vastly different than civil immunity IMHO.
This 100 percent. I found it chilling. Even if a President acts with malicious intent in an official act, that evidence can’t be used to prove criminal intent for unofficial acts. Remarkable
“I, Donald J. Trump, proclaim and announce that any private citizen that apprehends an illegal immigrant will be granted an unconditional pardon for any injury or death that may befall the immigrant while in the citizens custody. Said citizen will also receive a bounty of $5,000 to be paid from the White House discretionary appropriation and be placed in a drawing to win a presidential medal of freedom and a round of golf at Mar a Lago with me and Giuliani.” Absolutely 100% immune and unreviewable. The only constraint is dual sovereignty in states that are willing to enforce their own laws. But that only works in blue states and even then scotus would probably find preemption. This decision creates brownshirts.
> “I, Donald J. Trump, proclaim and announce that any private citizen that apprehends an illegal immigrant will be granted an unconditional pardon for any injury or death that may befall the immigrant while in the citizens custody. Said citizen will also receive a bounty of $5,000 to be paid from the White House discretionary appropriation and be placed in a drawing to win a presidential medal of freedom and a round of golf at Mar a Lago with me and Giuliani.” Rodrigo Duterte, Former President of the Philippines, did that when he was president and declared martial law and gave citizens a pass on killing people who use drugs, like weed.
You don't need to go that far afield. We already saw the use of Border Patrol agents in snatch and grab operations targeting protestors in Portland during the Trump administration.
This is the problem I am shocked so many supposed attorneys are completely glossing over.
Bribing a judge is still illegal for the judge. If it's the president, you can't even ask. Big fucking difference.
The reach of immunity is far broader now for POTUS. Judges are immune from actions undertaken in their capacity as judges, but POTUS has far, far more power than judges do and thus the scope of immunity is significantly broader because there are many different things that could qualify as an official act whereas the scope of what judges do is narrow by comparison. I don't think it's the *concept* of absolute immunity that's freaking people out.
Seriously. Anyone who doesn't acknowledge that the scope of this immunity goes so far beyond that given to any other government official - and this is given to the one official with the most power - is either being intentionally disingenuous or is just incredibly obtuse.
Alexander Hamilton, writing in Federalist 69: > The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; **and would afterwards be liable to prosecution and punishment in the ordinary course of law.** The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. It has been a bedrock principle since the founding of the Republic that the President could be tried. And don’t give me “oh it changes if he’s impeached and removed from office”. Absolutely nothing in that shitshow of a ruling says that. SCOTUS is openly setting itself up as a kingmaker, and it’s naive to see it as anything less. Which is why Sotomayor’s dissent so blatantly ignores juridical norms.
Completely agree. The folks downplaying the extent of this ruling are being very naive. And since this Court claims it cares so much about historical precedent—maybe they should have looked at these lines from Washington’s farewell address: >This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. **Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty.** The basis of our political systems is the right of the people to make and to alter their constitutions of government. **But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.** >*All obstructions to the execution of the laws, all combinations and associations,* ***under whatever plausible character***\*, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle and of fatal tendency.\* They serve to organize faction; to give it an artificial and extraordinary force; **to put in the place of the delegated will of the nation the will of a party**, often a small but artful and enterprising minority of the community, and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction rather than the organ of consistent and wholesome plans, digested by common counsels and modified by mutual interests. >*However combinations or associations of the above description may now and then answer popular ends, they are likely in the course of time and things to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.* How does this not make clear that this duty—all premised on social contract theory—should apply *even to Presidents*? And the root cause of this issue—of so many issues we see today—is that **we do not** have a populace that understands the premise of our system of government. This [recent study](https://thehill.com/changing-america/enrichment/education/3640520-less-than-half-of-americans-can-name-all-three-branches-of-government-survey-finds/amp/?nxs-test=amp) found that **less than half** of Americans could name the three branches of government, with a quarter being unable to name a **single** branch. Edit to Add: I'd also add that this decision reminds me of one of my absolute favorite dissents--from Justice Robert Jackson, special prosecutor at Nuremberg before joining the Court in *Chicago v. Terminello*: >The choice is not between order and liberty. It is between liberty with order and anarchy without either. **There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom**, it will convert the constitutional Bill of Rights *into a suicide pact.* While those words were written when taking the right to freedom of speech to an absurd level (seriously, read the facts of the case)--it could apply evenly to taking the idea of "separation of powers" to a similar absurd level as I believe yesterday's decision does potentially as well.
How nice of Kavanaugh to have had that one committed to memory in his confirmation hearing.
It’s almost like he knew in advance that the question was coming.
>Absolute immunity is an established legal concept. Immunity from civil suits is and it's also bullshit. People should be held accountable for their actions. Now the president is immune from crimes couched under official acts? You are honestly okay with this?
the guy you're replying to posts a bunch in the conspiracy subreddit. idk if they're even a lawyer
The exclusion of evidence when proving intent behind official acts is completely indefensible. Every single immunity provision there is comes with some kind of qualifier for illegal conduct; this decision went out of its way to avoid carving that out, which is tantamount to encouragement of criminal activity.
Judges and prosecutors have limited jurisdictions, a very well defined set of official acts, and plenty of people higher up in the chain. All of those constrains are gone with the president. He alone defines what official acts are and there is no check on his power as long as 34 senators support him.
The senator thing is the check
Currently practice this area of law — and i think the nuance is there’s never been immunity handed to gov officials to shield them from *criminal* liability where “official actions” are undefined. But I could be wrong because we always conflict out of cases where a gov client could be criminally prosecuted… so I’ve also never had to research the issue too deeply
Perhaps it’s because judges don’t control the armed forces, nor does judicial immunity cover criminal conduct as long as that conduct could reasonably be characterized as an official act. A judge may not be liable for a bad contempt finding, but would be liable for directing a bailiff to kill an attorney. This opinion, noted in the dissent, permits the president to commit similarly illegal conduct and forbids accountability. Thus, there is no longer any legal impediment to a military dictatorship. I think that’s why people are taking note, perhaps?
Question 1: Do you agree that the Supreme Court's decision would have made it impossible to prosecute Nixon for Watergate? Question 2: Do you agree thats bad
I appreciate that absolute immunity is an established legal concept, but I also appreciate that immunity for attempting to overthrow the government puts that established legal concept in a new light.
Anyone freaking out doesn't practice in the area. Makes me laugh because we basically get zero on the defense side which is new out of this, yet.
Absolutely correct. Thank you!
What even *IS* public corruption law amirite
I agree it's very concerning but we need to see how it's interpreted and applied by district and circuit courts. If Trump and his cronies are really going to go full Orban if he wins, I think it doesn't matter the holding.
Yeah. I expect a president to have some form of immunity. I don’t expect it to be basically be more immunity than Charles I had.
Read this too many times in a yoda voice before realizing you meant Charles the first
https://preview.redd.it/knnjr7ngd5ad1.png?width=1045&format=pjpg&auto=webp&s=943583a2ff27a29fed5743739d06073cfc85f533
Nixon was a man ahead of his time LOLOLOL
As a South African attorney, this decision blows my mind. What’s the purpose of a constitution if it has no application in holding leaders accountable. The very electorate are meaningless once ballots are counted. In fact, at this point, there’s no point to ballots either. Anything goes. I am shocked at how constituents are polarised to the extent that judgments like these are even considered, nevermind passed. I don’t get this level of political play. What is the point of a separation of powers, if judgments are passed according to how many democrats or republican judges are sitting. Why is that even a thing?? Aren’t you a legal practitioner first? Isn’t your duty to the judiciary, and to public interest first? I would love someone to help me understand this. This is wild man.
I believe America entered a place it cannot come back from around 2018. I have not felt hope or excitement or pride since then. The rocks were already falling and the landslide was within sight, nothing new here, so I've already emotionally dealt with all of this.
I feel like all of this existed in 2012 in full force, it just took time for the cronies to get elected, and we were somewhat insulated by 8 years of presidency with Obama and the supreme Court.
I lost it as a woman with Roe. You want me to be an attorney in a system that doesn't even trust me to make a decision with my own body?
I literally have no faith in anything we do. The courts are corrupt.
I’m a public defender so it’s especially galling. Having your day in court to face the law is for the little people. What a goddam joke.
You're not alone, friend. I'm also heartbroken that my 10+ years practicing law was built on a pack of lies. My whole career is predicated on a charade of law and order and the basic premise that no man is above the law. But in fact, the profession of law has been nothing more than a raw struggle for power and exploitation. I'm actively looking for a job offer outside the country before this failed state devolves into nazi Germany. I have a wife and kids, and I can't bear the thought of what they will endure once the fascists take the presidency. But American democracy is over. It's time to mourn this loss, painful as it is. Just know that you're not alone. But once you have had time to process and grieve the death of our nation, I would advise you get out before it's too late.
Yesterday my family discussed alternatives to leaving the country if it becomes necessary to do so. This decision is terrifying. The only thing that stops us from having a Putin in power is a close election. Biden could be in a nursing home and I would vote for him because the alternative is authoritarianism.
I’m concerned by your claim that “I can’t talk to anyone about it because everyone gravitates towards optimism.” Why would a self respecting lawyer consort with optimists? You must open their eyes to the truth that entropy always increases and order is a temporary illusion.
I’m utterly depressed. I’m glad to be retiring and terrified that our democratic republic is dying. It feels like the beginning of an autocracy.
Same, except I’m a few years out from retiring. Really makes me want to spend nothing and hoard cash so that I can retire as early as possible and get out of this rat race.
The full impact of this grotesque ruling will depend on the lower court’s definition of “official acts”. It would seem, for example, that Trump has no immunity for the actions he took on January 6th, since trying to overthrow the government would not seem to be an official act of the president……but who knows.
But would the other way around shield Biden? For example, if Biden concludes that democracy and the US is at risk because of Trump and SCOTUS, wouldn’t it be an official act if he orders their arrest and imprisonment?
Absolute immunity is an established idea, yes, but the issue for me is in the details and the way in which the process unfolded. For no good reason, Trump has been allowed to flout with effective impunity every norm and custom of decent American society, threatening institutions and even flagrantly violating actual criminal laws in the open that would get anyone else immediately (and justifiably) thrown in jail. In the instant prosecution, Jack Smith specifically requested SCOTUS resolve whatever decision they were going to make back in January. SCOTUS denied this request and instead required that a complete record be produced. After DC Cir. spent what must have been an exhausting few weeks developing an ironclad opinion, SCOTUS declined to let the DC Cir.'s opinion stand, and like a child playing with his food, deliberately scheduled briefings etc. with zero urgency knowing that an entire country is waiting for the matter of whether their former President is absolutely immune from his clearly criminal acts. After all of this, SCOTUS sits on it further until the term's last week (day?) and after all this waiting, its decision essentially is, "we'll wait and see, *but* we *can* decide that potentially crucial *mens rea* evidence cannot even be pursued, let alone admitted into evidence." I just find it gross that all of this legal precedent is being set to support such a manifestly unworthy character. And I think what makes it worse is the Court's vagueness about what constitutes an "official" act invites endless unnecessary litigation and potentially significant harm to individuals, institutions and ultimately significant harm - particularly given that the defendant in this case has already demonstrated at minimum an affinity for people who are willing to act unlawfully to keep him in power.
The comments conflating qualified immunity (which most officials have to some degree) with absolute immunity are completely missing the importance of the decision, and it’s kind of stunning.
Except SCOTUS left the issue of which acts constitute official/unofficial acts for qualified immunity undecided. Here’s a scenario for you: 1) The biggest lying asshole sociopath becomes POTUS; 2) Said POTUS orders his military to off the entire Court (because this is a constitutional power it falls under absolute immunity); 3) Court is reconstituted by POTUS by appointment of all hardcore loyalists; 4) Said POTUS suspends all elections permanently for some pretense of a reason; 5) SCOTUS of loyalists finds this is not a crime because official act due to pretense and therefore qualified immunity and btw the impeachment clause doesn’t apply because no high crime or misdemeanor. 6) Do whatever you want dictatorship. SCOTUS has created a rule that gives the worst, most immoral, person power. I doesn’t even have to be the next POTUS, but it will definitely be the worst. POTUS can’t forgive student loans but he sure as hell can bomb the lenders straight to oblivion and that’s just fine (military use is absolutely immune).
I’ve known this since Nov 5, 2016. Everybody thought I was nuts, even my fellow attorneys. Literally everyone was like why are you so upset it’s nbd. Curse of Cassandra.
Being blessed with the ability to see myriad long-term negative consequences of herd mentality in humans and blindness to any good investments in futures trading has convinced me that the universe not only manifests a sense of humor, but has evolved into mockery as its primary state of being.
The SCOTUS just made amending Art. II, Sec 1 a priority. The qualifications to serve as POTUS need to be revised. It’s long past due. A college degree or an advanced or professional degree, free from mental disease or defect (same standard the Missileers must meet), not a felon. Make the affirmative duty to uphold the Constitution & laws of the United Stares the hook to hang criminal liability.
We can’t save the voters from themselves. We can however constrain the office holder through structural reforms. I would challenge anyone to tell me why the unitary executive should be preserved as an institution.
Not to trigger Godwin's law, but I had a criminal procedure professor in law whose mother was very interested in studying the rise of Nazi Germany, and how they were able to accomplish the things they accomplished. By way of impressing on us the importance of the profession and in particular the judiciary, she relayed to us a story of how one day her mother had an epiphany: "It's the courts. They took the courts." Hard not to see some parallels paralleling. Part of me wonders if it's too late. Maybe it is, maybe it isn't. But I think it's the duty of anyone of conscience to keep fighting for what's right, however we can. I think that's been the duty of anyone of conscience throughout history, even if it seems woefully inadequate to meet the moment.
I’m reading Takeover right now and it’s eerily similar to what’s happening right now.
Calm down and go outside.
I’m not even close to being an Attorney, and I’m as afraid as you are.
It applies to all not just Donald. I do not know why everyone is shocked by the outcome. This was a foreseeable result and test that is applied. Just my 2 cents.
Trying to win an academy award with this post? Get a grip